ILNews

Reforms urged to prevent mistakes

Back to TopE-mailPrintBookmark and Share
Justice in Question

When innocent people go to prison, the entire criminal justice system can be thrown under a microscope as advocates, attorneys, judges, and legislators attempt to figure out what went wrong.

Reactions are mixed about how Indiana rates overall in preventing and analyzing those wrongful convictions, and national advocates for wrongful-conviction reforms say Indiana is slightly behind when compared to other states that have implemented reforms in the past decade. But hope can be found as they examine the state’s efforts to strengthen the system and try to prevent these criminal justice mistakes from happening in the first place.

systematic changes

“Indiana appears to be interested in ways to enhance the accuracy of criminal investigations, strengthen prosecutions, and better ensure both justice and public safety,” said Stephen Saloom, an attor ney and policy director for the New York-based non-profit Innocence Project, which studies these issues and advocates for reform nationally. “That’s the positive that we need to look at.”

Of the causes that most often contribute to wrongful convictions eyewitness misidentifications, invalidated or improper forensic science, false confessions or admissions, and bad information from informants or snitches. Indiana has implemented only one of the five key reforms believed to help address those issues.

Nationally, 31 states have enacted DNA preservation statutes while all but Alaska and Oklahoma have adopted automatic DNA testing laws, according to the Innocence Project. Sixteen states have implemented a policy about recording police interrogations, seven states have put eyewitness identification reform policies in place, and eight have established “innocence” commissions to study broad-based criminal justice reforms in these areas.

While Indiana has established a statewide public defender agency to help on cases, and defendants are able to obtain post-conviction hearings that other states sometimes don’t offer, Indiana has adopted only one of those national reforms: an automatic DNA-testing statute, Indiana Code 35-38-7, has been in effect since July 2001.

Discussion has been ongoing about whether Indiana should have a DNA preservation statute, but the Indiana Supreme Court says nothing official is currently being considered on that topic. The court is, however, exploring whether custodial police interrogations should be recorded. 

UPDATE: The Indiana Supreme Court issued an order Sept. 15, 2009, adding a new Rule of Evidence requiring that statements obtained during police interrogations must be recorded before they can be entered into evidence in felony cases. Click here to read more.


More than 300 public comments were submitted to the state court’s Committee on Rules of Practice and Procedure during a public comment period that ended

April 30. The court is deciding whether it should adopt a rule requiring that police custodial interrogations in criminal investigations should be recorded and what form that might take. Two prototypes outline possibilities for Indiana Rule 26 of Criminal Procedure on Electronic Recordation, or Indiana Rule of Evidence 1009.

During the last legislative session, Rep. Linda Lawson, D-Hammond, and Sen. Karen Tallian, D-Portage, both pitched the idea, but their bills didn’t make it out of committee. Fiscal impact statements said the Indiana State Police record about half of them already; a law could mean spending to start the process if it’s not already done, but savings could be found in time and costs of pretrial or trial hearings about what happened during a custodial interrogation.

Floyd County Prosecutor Keith Henderson, who is chairman of the ethics committee of the Indiana Prosecuting Attorneys Council, said the requirement would undermine police officers’ work and also jurors’ ability to determine the truth. His comments echo several others submitted by prosecuting attorneys throughout the state.

SaloomOn the other hand, Terre Haute defense attorney Jessie Cook argues that the recording should be required because it’s consistent with what other states are doing and it can directly impact a potential wrongful conviction.

“Electronic recording of custodial interrogations minimizes the risk of false confessions and convictions of the innocent, while providing powerful evidence to help convict the guilty,” she commented to the court.

The rules committee is currently considering the issue, and there isn’t a timeline as to when any action must occur. Whatever happens on that reform, though, advocates say they are encouraged the state’s criminal justice system officials are talking about the issues that often result in wrongful convictions.

“We all have to start somewhere, and it’s good that Indiana is having those discussions,” said Marla Sandys, an associate criminal justice professor at I.U. Maurer School of Law - Bloomington, who also sits on a wrongful conviction advisory board in Indianapolis. “Everyone is on the same side (because) no one wants to see innocent people convicted. The question becomes how do we make sure that best happens. That’s the struggle and obstacle, and there are no easy answers.”

Rep. Ralph Foley, R-Martinsville, who sits on the House Judiciary and Courts and Criminal Code committees, said he is also concerned about these issues and doesn’t have a problem with recording police interrogations or other issues that could better help prevent wrongful convictions.

“Wrongful convictions seem to be the unusual exception, and there’s probably more on the other side than those involving wrongful convictions,” he said. “But I came up on the law-and-order side of the system. So it bothers me that we review these in a courtroom laboratory when there may not have been proper training at the front end.”

When asked about the rate of wrongful convictions nationally and how the state focuses on that at the appellate level, Indiana Attorney General Greg Zoeller referred to the high rate of criminal convictions that are affirmed. Zoeller said his office closely follows any legislative or court efforts to more sharply hone the use of forensic evidence in criminal trials. He also works closely with county prosecutors to ensure the system’s fair to both the accused and victims.

“Maintaining public support for the criminal justice system is part of my role as attorney general,” he said. “Our office’s duty is to defend the legal process on appeal, and our success rate in having criminal convictions affirmed is greater than 90 percent.”

HendersonEvidence nationally and statewide that wrongful convictions happen can cast doubt on the overall system, according to Fran Watson, attorney and law professor at Indiana University School of Law -- Indianapolis, and others watching these issues. At the Indianapolis law school, the now-freestanding wrongful conviction clinic helps keep an eye on those cases where justice has been wrongly adjudicated and also advocates for prevention. Earlier this year, a 12-person advisory board was also established to help the clinic educate, exonerate, advocate, and communicate about the related issues. The group’s mission is to “elevate practice expertise, knowledge and advocacy to exonerate those who have been wrongfully convicted, and identify the systematic failings that lead us to wrongful convictions.” State and local prosecutors, defense attorneys, private practice lawyers, and criminal justice and forensic science law professors comprise the committee.

“We like to think we have more of a presence and identity, and we can have an impact where it counts,” she said. “It’s just about the worst thing to believe someone in prison is innocent and shouldn’t be there to begin with. And while we can talk about reforms all day long, I couldn’t agree more (that) the lawyers have to get it right at the trial level to have the best chance of prevention.”

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

ADVERTISEMENT